Bill 47: Making Ontario Open for Business Act, 2018 – Employment Standards Act, 2000 considerations

Minimum Wage

• $14 minimum wage
• $15 minimum wage on January 1, 2019

• Minimum wage frozen at $14 until October 1, 2020
• Minimum wage will be subject to an annual inflation adjustment starting October 1, 2020

Scheduling

• Starting January 1, 2019, employees can request changes in work schedule or location. Employers will have to provide reasons for denial.
• Starting January 1, 2019, employees are entitled to three hours’ pay if their shift is cancelled within 48 hours before it begins
• Starting January 1, 2019, employees will have a right to refuse a change in schedule or on-call shift if the request is made fewer than 96 hours before the shift was scheduled to start
• Starting January 1, 2019, employees are entitled to three hours’ pay if they are on call and not required to work, or if they work fewer than three hours
• Employers must keep records of dates and times the employee was scheduled to work or be on call and any cancellations

• Nearly all of the changes to scheduling have been repealed
• Employees who regularly work more than three hours a day, and are required to present themselves for work, but who work fewer than three hours, will be entitled to a minimum of three hours’ pay
• An exception to the three-hour minimum still exists for fire, storm, power failure, lightning, and other similar events beyond the employer’s control

Personal Emergency Leave

• Ten days of leave due to personal illness, injury, or medical emergency for employees and/or certain family members
• The first two days are paid
• Employers may not require a doctor’s note to substantiate these absences

• Personal emergency leave has been repealed and is being replaced with sick leave, family responsibility leave, and bereavement leave, each of which applies separately from each other
• Employees are entitled to three sick leave days, three family responsibility leave days and two bereavement leave days
• Each new category of leave is unpaid
• Eligibility for these leaves begins after two consecutive weeks of employment with the employer
• These leave days are deemed to be taken as entire days, regardless of whether or not the employee is off work for the entire day
• Evidence reasonable in the circumstances can be requested by an employer, including a doctor’s note
• Sick leave: three unpaid days for personal illness, injury, or medical emergency
• Family responsibility leave: three unpaid days for illness, injury, medical emergency, or urgent matters relating to a parent, grandparent, child, spouse, sibling, or dependent relative of the employee
• Bereavement leave: two unpaid days for the death of a parent, grandparent, child, spouse, sibling or dependent relative

Leaves, Generally

• Two new categories of leave:
  • Domestic and sexual violence leave (up to 10 individual days and up to 15 weeks, with the first five days paid); and
  • Death of a child or crime-related disappearance leave (up to 104 weeks)
• Increased entitlements for parental leave (61 weeks if the employee took a pregnancy leave and 63 weeks if the employee did not take a pregnancy leave); family medical leave (28 weeks in a 52-week period); critical illness care leave (37 weeks in a 52-week period for a child, 17 weeks in a 52-week period for an adult)

• New leaves and increased entitlements remain the same, however, if an employee takes a paid or unpaid leave under an employment contract in circumstances for which he or she would also be entitled to take sick leave, family responsibility leave, or bereavement leave, then the employee is deemed to have taken the statutory leave

Employee Classification

• Employers face a reverse onus to prove that a worker is not an employee if the employee’s status is in question

• Repeals the reverse onus provision
• Employers must still classify employees correctly

Public Holiday Pay and Vacation Time/Pay

• Calculated as all regular wages earned by the employee in the four work weeks before the work week in which the holiday occurs, plus all vacation pay payable during those four weeks, divided by 20
• Three weeks’ vacation time/pay for employees with five or more years of service
• Two weeks’ pay for employees with less than five years’ service

• Law remains the same

Equal Pay for Equal Work

• Equal pay for equal work for those who perform substantially the same (but not necessarily identical) jobs for the same employer
• Equal pay for equal work on the basis of number of hours worked (part-time, full-time, seasonal, casual) and employment status (temporary)

• Will maintain equal pay for equal work for those who perform substantially the same (but not necessarily identical) jobs for the same employer
• Will repeal equal pay on the basis of hours worked and employment status

Penalties for Contravention

• $350/$700/$1500 for first/second/third administrative contravention

• Reduced to $250/$500/$1000 for first/second/third administrative contravention

Wage Review

• Employees can request a review of their wages and employers must respond with a pay adjustment or written explanation for why they won’t adjust their rate of pay

• This obligation has been repealed

Scope of Act

• ESA currently exempts an individual who performs work in a simulated job or working environment if the primary purpose in placing the individual in the job or environment is his or her rehabilitation

• Repeals this exemption. Those who perform work in a simulated job or working environment (for the primary purpose is his or her rehabilitation) will be covered by the ESA